Sunday, 30 January 2011

Vehemently Against Divorce Referendum

30th January 2011
The Malta Independent on Sunday

According to organised leaks about an internal PN meeting, Minister Austin Gatt has declared that not only is he vehemently against divorce but that he would resign from the PN if the Party adopted the introduction of divorce amongst its policies. The meeting was called to discuss the Party and government’s way forward in the face of public outcry from a large section of the population which transcends party ranks, to do something about the introduction of divorce – an outcry that has led to a private member’s bill for the introduction of divorce by two prominent politicians sitting on opposite sides of our Parliament.

Minister Gatt has the right to his opinion, which must be respected. If he resigns it would be no earth-shattering event, given that he has already made public the fact that he does not intend to stand for office at the next general election. At worst, he would be bringing his political retirement forward a little.

It was also leaked that the government plans to present the divorce issue for decision by a public referendum within the next six months.

What I am vehemently against is the very concept of holding a referendum on the introduction of divorce. I consider divorce to be a civil right enjoyed by most civilised societies on earth and I find it unappetising, to say the least, that my civil rights have to be subjected to the will of the majority.

Would anyone accept a referendum on whether we should maintain freedom of expression, the right to travel or the right to follow whatever religion in which we want to believe? Would we allow a referendum on the obligation to pay taxes, on denying pension or social benefits to gays or on the right to form an association with others in the pursuit of common values?

These are all matters of principle, matters of individual rights and obligations, and no one ever dares suggest subjecting their introduction or maintenance to a popular referendum. Even if, for hypothesis sake, a majority opinion forms in society that gays should be denied pension benefits, that majority cannot enforce its opinion on the minority by subjecting such a civil right to a popular referendum.

Referenda should be reserved for matters of opinion, not matters of civil rights. We can have a referendum on whether to paint the windows of Castille blue or red. We can have a referendum on whether to change to driving on right. And we have already had a referendum on a more serious matter, such as joining the European Union, which was a matter of policy, not of civil right.

So the holding of a referendum about the introduction of divorce can only be for one or two reasons – or both. It is either an attempt by religious fundamentalists within the government to kill the issue for a few more years before an intractable majority in favour of divorce sets in among the population and in the meantime create a convenient diversion from discussing more politically harmful issues about government’s performance such as corruption, neglect and incumbency fatigue in general. Or the government, and whoever else supports the idea of deciding the introduction of divorce by means of a popular referendum, does not consider divorce to be a civil right to be enjoyed by individuals who need it, even if it is against the opinion of the majority.

I am not expecting that the Catholic Church, which is still steadfastly against the use of condoms, against the use of birth control medicine, against gay relationships and against sex outside marriage, to come out and say hey, divorce is a civil right and although we are against it we would not mind society applying it under sufficient precautions to safeguard against excessive libertarianism. But because the Catholic Church – and some of its faithful who do not consider divorce to be a civil right – is against divorce, does not mean that society in general, and our civil government in particular, should adopt the church’s standards in our civil legislation.

If we were to do so, then we would have to deny many civil liberties that today we take for granted, such as the right for adults to form a relationship outside marriage and the right of adults to have consensual sex outside marriage without even forming a relationship.

The Church and its followers have every right to their opinion, and to try to persuade others to adopt their point of view, but they have no right to impose their opinion on everybody and to deny the minority, if the pro-divorce lobby is still a minority – which is increasingly debatable – of their civil rights.

Divorce will enter our statute book whatever we decide now, even if it is denied through the inappropriate mechanism of a popular referendum. It is only a matter of time. Those who are vehemently against divorce should direct their energies to the long term and see what needs to be done to reduce the rate of marital breakdown, which is the main reason why a majority in favour of divorce may already exist or will come into being in the near future.

Politically, our elected representatives cannot escape their responsibilities towards a large section of society which, if not a majority today will become a majority tomorrow. Rather than wasting energy and money holding the minority ransom to the majority opinion through the mechanism of a popular referendum, our political parties should put their policy regarding divorce in their electoral manifestos for the next general election.

They should explain what legislation they are prepared to bring to parliament for a vote on the divorce issue and detail what conditional precautions they are proposing to ensure fair accessibility but not libertarianism. I would support divorce being accessible on mutual consent of the parties where there are no minor children. Where there is no mutual consent, or where there are minor children, divorce should only be accessible to couples who have already lived apart for more than five years to ensure that all hopes of saving their marriage have been explored and exhausted.

As divorce happens to have no distinct political delineation, the parties should offer their MPs a free vote on the issue, as it is unlikely they can find sufficient consensus to consider divorce as an inalienable civil right, as I do.

Voters should then make it their business to know the opinion of the candidates in their district on the divorce legislation that their party proposes to bring to parliament. I personally would not vote for any candidate, even within the party I support, who would vote against divorce legislation and thus be willing to deny the minority, if minority it is, of an important civil right.

We will then have a situation where the elected representatives would have a popular mandate to bring the issue of divorce in front of parliament for a free vote, something that the present legislature does not have as it did not form part of the electoral manifesto, and would force our elected representatives to carry out the responsibilities for which they were elected, i.e. to legislate or not to legislate on the subject of divorce without throwing the issue back to the electorate in a hideous attempt to avoid doing their job.

Alfred Mifsud

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